700
Souter, J., dissenting
Georgia's invalidation of the statute upheld in Bowers; 31 and
New Jersey's enactment of the provision at issue in this case. Indeed, the past month alone has witnessed some remarkable changes in attitudes about homosexuals.32
That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice Brandeis so wisely advised, "we must be ever on our guard, lest we erect our prejudices into legal principles."
If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent.
Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting.
I join Justice Stevens's dissent but add this further word on the significance of Part VI of his opinion. There, Justice Stevens describes the changing attitudes toward gay people and notes a parallel with the decline of stereotypical thinking about race and gender. The legitimacy of New
Appeals agreed with that argument. A dissent from denial of certiorari, citing the university's argument, suggested that the proper analysis might well be as follows: "[T]he question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle sufferers be quarantined." Id., at 1084 (Rehnquist, J., dissenting).
31 Powell v. State, 270 Ga. 327, 510 S. E. 2d 18 (1998).
32 See, e. g., Bradsher, Big Carmakers Extend Benefits to Gay Couples, New York Times, June 9, 2000, p. C1; Marquis, Gay Pride Day is Observed by About 60 C. I. A. Workers, New York Times, June 9, 2000, p. A26; Zernike, Gay Couples are Accepted as Role Models at Exeter, New York Times, June 12, 2000, p. A18.
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